Oaths, probate and jury service ...

In a continuing series, the Law Society's practice advice service offers guidance on a range of issues

Q As a practising assistant solicitor on a busy high street, I am asked to swear numerous oaths, affidavits and to take declarations. I charge the usual fee of £5 for the swear and £2 for any exhibits, which my firm allows me to keep. Are these charges subject to VAT?


A No. By agreement between the Law Society and Customs and Excise, oath fees retained personally by associate or assistant solicitors are not subject to VAT, unless associate or assistant solicitors are:

Registered or liable to register for VAT as a result of the aggregate of taxable supplies made to their own account; or

Required to account to their firms for oath fees received, in which case the fees should be dealt with as part of the firm's taxable turnover.

See the Law Society's Guide to Oaths and Affirmations, second edition, which is available from the Law Society's bookshop, tel: 020 7320 5640.




Q Can I exchange contracts by fax?


A Yes. See the Law Society's formulae for exchanging contracts by telephone, fax or telex in The Conveyancing Handbook, eleventh edition.


However, a physical exchange of documents must follow the faxed messages. If this were never to happen, a party seeking enforcement of the contract would have difficulty in demonstrating that the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 have been satisfied. See Milton Keynes Development Corporation v Cooper(Great Britain) Ltd [1993] EGCS 142, where an exchange of faxes was held not to be an exchange of contracts.


The main use of fax is to transmit the messages that activate the Law Society's formulae for exchanging contracts. In this context, fax is merely a substitute for using the telephone. Standard Condition of Sale (fourth edition) 1.3.3 and Standard Commercial Property Condition (second edition) 1.3.3 do not permit faxes to be used as a valid method of service of a document where delivery of the original document is essential (as it is with the contract). That effectively rules out an exchange by this method, although there is no objection to the parties using fax to activate the Law Society's formulae.




Q I am a partner in a firm of solicitors and have been summoned for jury service. My understanding is that solicitors are exempt from this particular civic duty. Is this correct?



A No. Pursuant to section 321 (schedule 33) of the Criminal Justice Act 2003 and the Criminal Justice Act 2003 (Commencement No 3 and Transitional Provisions) Order 2004, which commenced on 5 April 2004, solicitors are now eligible for jury service.


Jury service - which usually lasts for up to ten working days - is compulsory for all registered electors in England and Wales, aged between 18 and 70, who have lived in the UK, Channel Islands or Isle of Man for a continuous period of at least five years since the age of 13.


You may wish to look at the guidance produced by the Department for Constitutional Affairs for summoning officers when they are considering deferral and excusal applications. This guidance is on the Court Service Web site at: www.courtservice.gov.uk.




Q I understand that there is a protocol for the resolution of probate and trust disputes. Where can I obtain this?



A The Association of Contentious Trusts and Probate Specialists has produced a protocol. This can be obtained from the association's Web site at: www.actaps.com.




Q I am proposing to use the Standard Commercial Property Conditions of Sale in a transaction. Which is the current edition and where can I obtain it?



A The current edition of the Standard Commercial Property Conditions is the second edition, which took effect on 1 June 2004.


The conditions are available from Oyez Forms Publishing (tel: 020 7232 1000), Everyform (www.everyform. net) and Laserform (tel: 01925 750 000).


For more information, see the Law Society's Conveyancing Handbook and the [2004] Gazette, 10 June, 37.




Q What are the categories of fee-earner as outlined in the Supreme Court Costs Office (SCCO) Guide to Summary Assessment of Costs?


A The grades of fee-earner have been agreed between representatives of the SCCO, the Association of District Judges and the Law Society. The categories were increased in June 2001 from three to four as follows:

Solicitors with more than eight years' post-qualification experience including at least eight years' litigation experience;

Solicitors and legal executives with more than four years' post-qualification experience including at least four years' litigation experience;

Other solicitors and legal executives and fee-earners of equivalent experience;

Trainee solicitors, paralegals and other fee-earners.

For more information, see the Court Service Web site at: www.courtservice.gov.uk.




Q I have just received instructions from the widow of a former client to obtain a grant of probate. The deceased had assets in this country but had been domiciled abroad for many years. Will it be necessary for me to obtain a grant in England?



A Yes, if the deceased died domiciled outside England and Wales, but left assets in England and Wales (unless the Colonial Probates Act 1892 applies, or the deceased was domiciled in Scotland or Northern Ireland), it will be necessary to obtain a grant in England and Wales. See rule 30 of the Non-Contentious Probate Rules 1987.


For further guidance, see the Law Society's ProbatePractitioner's Handbook, fourth edition, available from the Law Society's bookshop.


This column is compiled by the Law Society's Practice Advice Service, tel: 0870 606 2522. Send comments to the Practice Advice Service, the Law Society, 113 Chancery Lane, London WC2A 1PL. The service endeavours to ensure that the information provided is correct, but does not accept liability for error or omission. This publication is intended for information purposes only and solicitors should not act on the basis of the information provided alone, without verifying it first